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A Look At Medical Cannabis In Work Comp

The use of medical cannabis has been debated in many states. Currently this substance is trying to find its place amongst Minnesota’s workers’ compensation claims. The law firm Peterson, Logren & Kilbury, P.A. summarize the status of this situation below. All WCMC clients are free to contact the attorneys at PLK with any questions regarding this topic.

COVID19 Vaccine; What Employers Should Know.

The question has been asked if employers should provide the COVID19 vaccine for employees. Although this may stem from good intentions, employers need to be aware of the liability involved if they were to pay for, administer, or require employees to be vaccinated for COVID19.

Below, the law firm Peterson, Logren & Kilbury, P.A. provides a great legal basis as to why employers should not mandate the vaccine from a workers’ compensation standpoint but rather maintain that the vaccine is on a voluntary basis.

Temporary Workers

Temporary Workers

The relationship between a company and their temporary workers is unique to say the least. Let’s use Company ABC as an example. Company ABC does not hire, fire, pay, or provide benefits for a temporary worker, nor does their workers’ compensation policy provide coverage.

However, that temporary worker does perform job duties for Company ABC’s just like any other regular employee; they are required to follow the company’s policies; and they are exposed to the same safety protections/hazards as any other regular employee.

So where does OSHA stand on temporary workers? It all comes down to by whom the worker was supervised by when the injury occurred. If a worker who is employed by the staffing agency is injured while performing work duties for Company ABC, while under the supervision of Company ABC, the injury must be recorded on Company ABC’s OSHA 300 log (assuming there was treatment beyond first aide).

OSHA standard 1904.31(a) Covered Employees says:

“You must record on the OSHA 300 Log the recordable injuries and illnesses of all employees on your payroll, whether they are labor, executive, hourly, salary, part-time, seasonal, or migrant workers. You also must record the recordable injuries and illnesses that occur to employees who are not on your payroll if you supervise these employees on a day-to-day basis…

It is also important to note that OSHA does not want the injury recorded on both companies’ log. Doing so would skew industry wide statistics.

In the event that the temporary worker and company relationship is ended prior to full recovery of the injury, Company ABC must continue to count restricted and lost time days. How? The OSHA recordkeeping Handbook says on page 119 that the two employers have a shared responsibility and may share information when there is a need to do so, i.e. for workers’ compensation claims and for OSHA recordkeeping purposes. 

It also states that the controlling employer (Company ABC) “must make reasonable efforts to acquire necessary information in order to satisfy Part 1904, but may be able to show that it is not feasible to comply with an OSHA recordkeeping requirement.”

Therefore, it is recommended that companies and staffing agencies keep record of communications, (and attempts to communicate if no response was received), regarding information needed to comply with OSHA recordkeeping requirements.  This would serve as a defense if OSHA were to issue a citation for deficient entries.

Here is a link to OSHA’s website regarding covered employees. https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.31

Thank you for reading! I hope you found this helpful.

It Doesn’t Pay to Pay

It Doesn’t Pay to Pay

When talking to employers about how a work comp loss time claim affects the experience modifier rate (mod), we are often asked, “can we just pay our employees when they are temporary totally disable from work instead of the insurance company to relieve the effects on the mod?” Let’s dig into that question.  Spoiler alert: the answer is, It Doesn’t Pay to Pay!

First, I’ll briefly describe the mod. The mod is that state assigned number that drives how expensive a company’s workers’ compensation premiums are.  Factors that impact the calculation of the mod include a company’s actual losses, payroll numbers and class codes, expected losses (both primary and excess), and other state determined industry rates. Among these factors the loss history is the main area a company can improve upon to achieve a lower mod, i.e., lower work comp premiums. 

So what numbers are included in the loss history? Generally speaking in Minnesota, for:

Lost time claims: total amount spent plus total amount of reserves if the claim remains open.

Medical only claims: Total amount spent on claims, plus the amount in reserves if the claim is still open. Then reduce that by 70%…SEVENTY PERCENT!

That 70% reduction is huge and it is the reason why we push so hard for employers to bring employees back to some form of light duty ASAP. 

If you are thinking to yourself, a few lost time claims hitting the mod is easier and cheaper than paying an employee for light duty, think again. The three complete years of loss history ending one year prior to the effective date are included.  So if the new rate is being calculated for 2019, the years 2015, 2016, and 2017 would be considered.

That means that one bad work claim would actually hit your mod for 3 consecutive years.  It’s haunting and you could be paying more in the long run due to its effects on your mod.

Mod calculations aside, studies show that employees who get back to some form of work sooner, recover faster. Speaking from experience, once an employee has been taken off of work, it is harder to get them released for any form of light duty.

It is also important to keep in mind that the frequency of claims has a large impact on the mod. For example, many minor claims could mean a higher mod than a few high dollar claims.

So back to that question, can the employer pay the lost wages instead of the insurance company.  Well, it doesn’t pay, to pay. MN Statue 176.221 sub 9. Payment of full wages says:

“An employer who pays full wages to an injured employee is not relieved of the obligation for reporting the injury and making a liability determination…If the full wage is paid the employer’s insurer or self-insurer shall report the amount of this payment to the division and determine the portion which is temporary total compensation for purposes of administering this chapter and special compensation fund assessments.”

It goes on to say, “The employer shall also make appropriate adjustments to the employee’s payroll records to assure that the employee’s sick leave or the vacation time is not inappropriately charged against the employee, and to assure the proper income tax treatment for the payments.”

In other words, the lost wages the employer pays, still hits the mod and actually creates more work for the employer, (my sympathies go out to the payroll administrators who would have to deal with this). Failure to report the lost wages paid would result in a penalty. 

Work comp attorney Mike Kilbury says, “from my perspective if done appropriately, there is more documentation required and there is virtually no potential for savings. I don’t see an upside to that.”

I hope you found this helpful. Thanks for reading!

Double Dipping

Double Dipping: Self-funded/Self-insured Disability Plans and Workers’ Compensation

For those of you in Minnesota and whom have self-funded/self-insured disability plans, this blog is for you. Attorney firm Peterson, Logren & Kilbury, P.A. put together a short summary of the recent Minnesota Supreme Court decision regarding the case Bruton v. Smithfield Foods, Inc., 923 N. W. 2d 661 (Minn. 2019).

The dispute in this case was whether or not an employee, whose work comp claim was originally denied and then later accepted, should have been paid lost wages under workers’ compensation law for the time the employee was medically excused from work even though the employee had already been paid under the employer’s short term disability plan for the same time period.

The court found that since there was nothing under the workers’ compensation statues or within the employer’s short-term disability plan that allowed for an offset in this situation, the employee was able to receive benefits under both plans, i.e., the employee got to double dip!

The summary also notes that, “had the employer’s short term disability plan contained a claw back provision allowing for the repayment of short term disability benefits…they would have been able to seek a credit for the short term disability benefits paid.”

The law firm recommends that if your company has a self-funded short term disability and/or a self-funded long term disability plan you should amend your plans to provide that any payments made in short term/long term disability benefits is a credit against workers’ compensation payments in the event the two forms of payments coincide.

I hope this was helpful. Thanks for reading!

Click on the image to the left to read the Peterson, Logren, & Kilbury summary